The Blawg 100, as selected by the ABA Journal, was featured in the journal’s December 2014 cover story. As a winner of the popular vote, “Best Practices for Legal Education” will be featured again in the February issue. The ABA Journal‘s Blawg 100 is an annual list of the best in blogs about lawyers and the law.

Four editors, 59 authors, 92 readers, three copy editors, librarians from two schools, a secretary, miscellaneous consultants, three student assistants for bluebooking, and one for setting up perrmacc links.*

Many people, occasionally in multiple roles, were needed to produce the manuscript sent to Lexis last Monday for the forthcoming book Deborah Maranville, Lisa Radtke Bliss, Carolyn Wilkes Kaas, and Antoinette Sedillo López (eds.), Building on Best Practices: Transforming Legal Education in a Changing World. (Lexis 2015). A monster project — but, as I assured a friend, no, not a manuscript about monsters and not monstrously unpleasant to produce – just big, ambitious, and sometimes exhausting for the editors and authors. A big thank you to all who participated!

The book is a follow up to CLEA’s Best Practices for Legal Education, the 2007 volume by Roy Stuckey and others that inspired this blog. Like Best Practices, this book will be distributed for free to legal educators. Lexis has promised to make it available in electronic format through their e-book library and to provide print copies on request. Look for it in four to six months — if all goes smoothly perhaps in time for the AALS Clinical Legal Education Conference in early May.

The coverage of Building on Best Practices is wide-ranging. To quote from the Introduction, “[t]his volume builds on the call to link mission and outcomes; emphasizing the themes of integrating theory, doctrine and practice, developing the broader spectrum of skills needed by lawyers in the twenty-first century, and taking up the question how best to shift law school cultures to facilitate change.”

Advance praise for the book has included:

“[M]ilestone in legal education . . . that legal educators will rely on as much as . . . on the first Best Practices book.” (Patty Roberts, William & Mary)

“Educational for folks who don’t know much about experiential education and insightful for those who do. . . .Really something to be proud of . . . an invaluable resource to schools as they go to work on implementing the ABA’s new requirements for learning outcomes and assessment. . .The perfect product coming out at the perfect time.” (Kate Kruse, Hamline)

Once again, CLEA deserves kudos for its support of an important scholarly project on legal education. And the Georgia State University, University of New Mexico, Quinnipiac University, and University of Washington Law Schools deserve a big round of thanks for supporting the co-editors in this project.

* https://perma.cc/ provides an archive for those annoying website links that quickly become outdated.

Chris Rock’s tweet “Are black men an endangered species? No, endangered species are protected by law,” captures at once the failure to apply our laws and when applying them to do so effectively. Scan to the recently released Senate Select Committee’s Study of the CIA’s Detention and Interrogation Program, yet another example of how we struggle as a culture with the rule of law.

How do law schools inspire students to work within a system that yields such results?

The AALS Deans Steering Committee had this to say: “Law school empowers students to become agents of change because it teaches students about the legal system of the United States, a system that has the seeds of change built into its structure.” The statement goes on to say that “The rule of law is the foundation of our society, our political system, and our economic system” and “The primary role of law professors is to teach the next generation of lawyers to think critically about problems, to understand the structure and power of law in our society, and to be thoughtful and engaged with respect to solutions.”[1]

Indeed, critical thinking about legal and other strategies that touch on social wrongs has been discussed in law school classrooms and clinic supervision for decades. However, our legacy is the workarounds and neutralizing of civil rights, workers rights, environmental, and other laws intended to help us solve social ills; the seeds of change have not borne the results expected. Students who are attracted to law school because they see law as a tool for solving problems, soon sense a system that is mightily frayed. As these students navigate the texts and training offered, they struggle with how within our venerated legal system to achieve change that will connect the law to the values they consider essential for a viable society.

Vermont Law School’s curriculum committee just approved a new course called Legal Activism: Lawyering for Social Change designed to expose students to theoretical and practical approaches to legal activism. The course will use Alan K. Chen and Scott Cummings, Public Interest Lawyering: A Contemporary Perspective (Aspen Elective 2012) as its text, taking advantage of the book’s focus on activist lawyers and legal strategies in our history. The impetus for the course was largely the disconnect between the careful web of procedure, precedent and statutes that perpetuate unsustainable results and the desire so many of our students have expressed to find paths that reflect the values they hold.

As law schools consider how to prepare students for the “new normal” (a painful phrase), we must recognize that among them are those who question the very premises of normalcy. Our challenge is to work with these students to foster a sense that they can achieve meaningful results, and that it is not too late to try. Their pursuit of change may test the structure of law in our society and its relevance to the increasingly urgent problems we face. While they may not discover more sustainable results than those achieved by activist lawyers in the past, we will do well to help them envision the possibilities.

Less than a month ago, the New York State Courts circulated a proposal to change the New York State (NYS) Bar Exam by adopting the Uniform Bar Exam (UBE) along with a second, separately graded “New York Law Exam” segment consisting of 50 multiple-choice questions, tested for one hour on the second day of the exam. The proposal would make the changes effective for all current graduating law students who face the bar exam in July 2015. This past weekend, the New York State Bar Association House of Delegates unanimously opposed the proposed immediate changes, sending a message to the NYS Board of Law Examiners and to the New York Court of Appeals – do not bring the Uniform Bar Exam and a yet to be formulated or studied New York Exam to NYS in July 2015. Even more significantly, the House directed the State Bar President, based on an amendment from the floor, to do everything possible to prevent immediate implementation of a new bar exam in New York.

So, how did NYS get to the point where the Courts and the Bar are in such conflict over proposed changes to the bar exam?

For several years, the NYS Legal Education and Admissions to the Bar Committee (LEAB) (on which I have formerly served as an active member) has been studying how to improve the bar exam to make it fairer for all groups of test takers and more relevant to what graduates need to know, value and do in the early years of practice. See NYSBA Legal Education September2013Journal particularly page 31. The Committee, through its chairs, has reached out to the NYS Board of Law Examiners and the Chief Justice about these matters without success. The UBE was not one of the reform measures which LEAB proposed for further study or pilot projects.

Suddenly, and without notice to the NYSBA LEAB Committee, co-chaired by well-respected practitioner Eileen Millett and equally well-respected Touro Law Center Dean Patricia Salkin , the courts circulated and posted the following:

1) UNIFORM BAR EXAMINATION (UBE) POSTED OCTOBER 7, 2014

The New York State Board of Law Examiners has recommended to the New York Court of Appeals that the current bar examination be replaced with the Uniform Bar Examination (UBE). The Court of Appeals is considering adopting the UBE for the administration of the July 2015 bar exam. On October 6, 2014, the Court of Appeals issued a Request for Public Comment on the proposal. Submissions will be accepted until November 7, 2014. A copy of the Request for Public Comment is available by clicking this link:New York Court of Appeals Request for Commenthttp://www.nybarexam.org

The proposal and request for comment document asserts that “The UBE is prepared by the National Conference of Bar Examiners (NCBE) and passage of the test would produce a portable score that can be used to gain admission in other states that accept the UBE, provided the applicant satisfies any other jurisdiction-specific admission requirements. As the UBE is accepted by more states,the portable score will facilitate lawyer mobility across state lines, resulting in expanded employment opportunities for lawyers throughout the nation and facilitating multi-state law practices.”

Given the surprise announcement from the Court on October 6, 2014 of a 30-day comment period (open until this Friday, Nov. 7th) , the LEAB and its co-chairs had only a matter of weeks to research, discuss and prepare a report for the State Bar Association about the implications of the proposed changes. The LEAB report 10-29-2014 (2) argues that it is simply too soon to discuss the merits of the Uniform Bar Exam and its potential impact on test takers in New York because of the surprise nature of the announcement along with absence of any study or report discussing a need, a cost-benefit analysis, or a discussion of whether there could be disparate impacts on minority test-takers. LEAB is concerned about potential increase in costs for test-takers, impact on barriers to entry to the profession in New York, and impact on the New York job market. LEAB discussions emphasized that the practicing bar has been pressuring law schools to meet the demands of a changing market place including, among other things, producing more “practice ready” lawyers that would presumably include a richer knowledge of New York Law. Impacts on foreign lawyers and other important issues for consideration were also raised.

On this past weekend, co-chairs Millett and Salkin presented their findings to the NYSBA House of Delegates. The presentation to the State Bar can be viewed here (Click on the Nov. 1 House of Delegates Meeting and then click on the Report of the Committee on Legal Education and Admission to the Bar) Co-Chair Millett challenged the notion that the proposed reforms as outlined would actually result in portability. Co-chair Salkin pointed out that the notion of “uniformity” seems misleading given that in NY many uniform rules are not used and that current law school courses focus on statutes different than those used by the UBE . Significantly, three past presidents of the NYSBA testified against the proposed immediate changes including Steve Younger who emphasized the issues raised by New York’s special connection with international lawyers from around the globe admitted to practice in New York State. Many expressed concern for current students facing the July Bar, including Albany Law School Professor Michael Hutter who asked “Why the Rush to Judgment?” Dean Patricia Salkin and Betty Lugo (President-elect of the Puerto Rican Bar Association founded in 1957) expressed particular concern that minority bar associations were not consulted, and that questions on the proposed brand new “New York Law Exam” component have never been tested on previous exams, a “best practice” for all standardized tests that are given as points of entry to higher education and the professions.

Why does this matter?

The contents, pass rates and disparate impacts of the bar exam matter tremendously . This is our profession’s gatekeeping device. It announces what we value and what we do not value. It will be a make or break change for many law students starting in July who have prepared their course of study under different sets of expectations. For many schools and many students, bar exam subjects and testing methods determine their course curriculum rather than what they need to meet student learning outcomes or preparing for practice. This proposed change deserves further scrutiny and evaluation. New Yorkers also deserve that the Court evaluate the success of licensure practices which include clinical evaluation while in professional school as opposed to sole reliance on standardized testing.

Should proposed changes result in a decrease in the number of doctrinal subjects tested on the NY Bar exam that will be an advantageous change both for making the bar exam more relevant and for allowing law schools and students to craft better curricular choices to prepare them for the jobs and careers of today and tomorrow. (see earlier BLOG post on this issue here.)

POTENTIAL DISADVANTAGES:

The process for adopting the proposed change is too hasty and is unfair to current third year students and to second year students who have already planned three semesters around the exam.

The proposed changes have not been studied appropriately. For example, no one knows if the new format, particularly the 50 question NYS multiple choice format, will exacerbate the already disparate impact on graduates of color and/or if it will create a separate barrier for admission to those who will make great lawyers but not particularly good standardized test-takers given the speededness/speediness factor – 50 multiple choice in one hour will make or break you on the NY part!

The proposed format fails to address the critical need for bar licensure to include evaluation of actual, supervised, and limited practice of law while in law school or immediately thereafter. As a gateway to a client-centered, civic profession, evaluation of the limited supervised practice of law could and should replace – at least some part – of the current standardized testing.

NEW YORK LAWYERS, LAW STUDENTS AND LAW PROFESSORS ACT NOW! Comments due by this Friday November 7th.

Fall is here and in addition to the start of the academic semester, the NYSBA Committee on Legal Education and Admission to the Bar is in high gear. So much has been written about changes in legal education in a short period of time, it can be difficult to keep track of the books, articles, columns, posts, etc. Thanks to Touro Law librarian Laura Ross, a working bibliography on legal education reform has now been posted to SSRN for all to access. http://ssrn.com/abstract=2500987 This is an ongoing work-in-progress, and Laura welcomes emails with suggestions for additions to the list. Entries in the bibliography provide great starting points for discussion among faculty and law school constituents about the present but more important, the future, for individual law schools. We hope you will use this to inform your teaching, scholarship and service to the school and community moving forward. Those of us fortunate to be a part of the Academy have a wonderful opportunity at this moment in time to respond to a rapidly changing legal profession by making deliberate and informed reforms in the way we educate the next generation of lawyers.

Like this:

What is a poor law student to do? Paul Campos has yet again set his sights on what he considers is the bain of legal education- for-profit law schools. Campos details how how a Chicago-based private equity firm got into the business of law schools. Summit Partners created InfiLaw and began to become legal educators by first purchasing Florida Coastal Law School and later adding Phoenix School of Law and Charlotte School of Law. The results while good for Summit Partners who receive their profits upfront according to Campos, left the InfiLaw graduates the big losers in long run. Campos noted that the average Infilaw graduate accumulated over $200,000 in debt while only 36% of the Class of 2013 had actual legal employment. This follows an overall trend in higher education where undergraduates and graduate students alike are funding their education with high-interest private loans that will take a life-long career of work to discharge. I pose a question that Prof. Bill Whitford taught me in my Contracts class at the University of WIsconsin more than a few years ago. What if the high costs of a legal education is not unconscionable as Campos suggests but the price a population of specialized students are willing to pay to gain access to a legal education that still has some social capital?

I am not a free market guru who will chant the mantra of law students paying for what the market determines is a valuable education. But there is a grain of truth in arguing that students who would not be accepted at traditional law schools are being given an opportunity to have a traditional law school experience. I do not know the statistics for the Infilaw students but I have a hunch that many of these students are first generation attorneys who come from modest working class or disadvantaged backgrounds. They are willing to take a chance on themselves and make a life-time investment that may not pay off in the long run. The forecast is not good for Infilaw students. Will they pass the bar on the first attempt? Will they acquire a level of employment or income that will erase their debts? Paul Campos says no and statistics will back up his claims. But do we shut out a group of over-achievers because only a small number will gain what legal scholars would deem success?

In my contracts class those many, many years ago, Prof. Whitford explained that there is a population that businesses are willing to take a chance on who have no credit or bad credit and who are willing to take on high interest rates to obtain merchandise. There is a good chance that this poor-credit/no-credit population would default on credit and be unable continue payments. The businesses knew and took the chance but built in the loss upfront with high-interest rates. The buyers knew they were paying far beyond the value of the merchandise just to be able to obtain the merchandise. Were the merchants unconscionable Prof. Whitford asked? In a consumer culture that is awash with the creation and cultivation of desire and consumption, how could anyone resist? Even those with poor or no credit. Didn’t we risk becoming paternalistic in determing who deserved what? Prof. Whitford posed provocative questions to my first year class.

I am not a proponent of for-profit law schools. I am the product of the Chicago Public School and the public university systems. I obtained a quality, low cost education that no longer exists. Campos’ article is a condemnation of the for-profit law school system that seeks to prey on a certain population. I agree. But we have no alternative. States are seeking to strip affirmative action programs from the law school admissions process. The University of Texas Law School buttresses for annual attacks on it’s admissions process. First generation law students, economically disadvantaged law students and law students of color have no viable alternatives. If these students are willing to take on the debt, derision and scorn of being a product of a low-tiered, for-profit system, I will not discourage them. They attend with full knowledge but want to become attorneys no matter what the costs. This is not a free market economist argument of caveat emptor but a lawyer who has loved the practice and teaching of law for over 20 years and does not wish to see it closed to those who desire the same experiences-no matter the costs

The ABA House of Delegates passed the comprehensve revisions with “minimal fuss” according to the ABA Journal linked above. One area, however, garnered significant attention and also resulted in an odd, though perhaps meaningless , procedural move. The House voted to send back to the Section on Legal Education for further consideration the comment to standard 305 which prohibits payment to students for credit-based courses.

What does this mean? Law schools which have not already done so must start identifying, articulating publicly and assessing student learning out outcomes, providing every student six credits of clinic or clinic-like experiential courses and requiring students to take two credit hours worth of professional responsibility coursework.

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